President Should Renew Efforts to Transfer Cleared Detainees
January 3, 2013
The administration blames Congress for making it harder to close Guantanamo, yet for a second year President Obama has signed damaging congressional restrictions into law. The burden is on Obama to show he is serious about closing the prison.
Andrea Prasow, senior counterterrorism counsel and advocate

(Washington, DC) – US President Barack Obama’s refusal to veto a defense spending bill restricting detainee transfers from Guantanamo undercuts his pledge to close the prison, Human Rights Watch said today. On January 2, 2013, Obama signed the 2013 National Defense Authorization Act (NDAA), even though his advisers had said they would recommend a veto if it contained detainee transfer restrictions.

“The administration blames Congress for making it harder to close Guantanamo, yet for a second year President Obama has signed damaging congressional restrictions into law,” said Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch. “The burden is on Obama to show he is serious about closing the prison.”

In a statement Obama made along with the authorization act, he criticized Congress for renewing the restrictions he said were intended to “foreclose” his ability to shut down Guantanamo.

“I continue to believe that operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies,” he wrote. However, he claimed the need to sign the legislation, saying the demand for funding was “too great to ignore.” Obama issued a similar statement when signing the NDAA the previous year.

In fact, the NDAA authorizes funding for most Defense Department operations, but it is not essential for the US armed forces to function, Human Rights Watch said. It does not actually fund the Defense Department, but authorizes the allocation of appropriated funds. If Obama had vetoed the 2013 authorization act, last year’s NDAA authorization would still have been in effect. Four of five presidents preceding Obama vetoed a defense authorization act.

The US House of Representatives passed its version of the bill on May 18, and the Senate passed its version on December 4. The conference committee of both chambers produced a reconciled version of the bill on December 18, which the House approved on December 20 and the Senate on December 21.

The law extends for another year restrictions on the transfer of detainees out of Guantanamo to their home countries or to third countries for resettlement. The restrictions are not based on the detainees’ conduct but on terrorist acts allegedly committed by former detainees in the transfer countries. Since the restrictions were imposed for 2012, the administration has not transferred a single detainee out of Guantanamo to a country under certification, even if the person already had been cleared for release. The only detainees to leave Guantanamo last year did so under pre-existing exceptions to the restrictions on transfers.

The authorization act also extends the prohibition on the use of Defense Department funds to transfer detainees to the US, whether for detention or trial, through September 30, 2013. If the administration cannot transfer detainees to the US, the only forum available for trial is the fundamentally flawed military commission system at Guantanamo.

Those military commissions have been marred by procedural irregularities, the use of evidence obtained by coercion, inconsistent application of ever-changing rules of evidence, inadequate defense resources, and lack of public access. The government’s ability to use military commissions for some charges has recently been called into question in a federal appeals court decision, which overturned the conviction of Salim Hamdan for material support for terrorism because it was not a war crime at the time of the alleged conduct.

Though the transfer restrictions in the authorization act are not a complete ban, they pose administrative hurdles, Human Rights Watch said. To transfer a detainee to a country other than the US, the secretary of defense must obtain certain guarantees from receiving countries on detention and information-sharing, among other things, before Defense Department funds can be used. The administration should press forward with obtaining these certifications and use the coming months to work with Congress to lift the ban on transfers to the US for trial, Human Rights Watch said.

“Indefinite detention without trial at Guantanamo is illegal, unsustainable, and against US national security interests, and it needs to end,” Prasow said. “But the administration should not continue to just blame Congress. President Obama should follow through on his earlier commitments and make the effort to overcome the transfer restrictions.”